IN THE UNITED STATES DISTRICT COURT FOR THE … to Consolidated MTD w... · 3 STATEMENT OF FACTS This case arises from the federal Bureau of Prisons’ (BOP) establishment, in 2006

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

Yassin Muhiddin AREF, et al., )

)

Plaintiffs, )

) Case No. 1:10-cv-00539-BJR

)

) Oral Argument Requested

Eric HOLDER, et al., )

)

Defendants. )

______________________________)

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANTS’ CONSOLIDATED MOTION TO DISMISS

Case 1:10-cv-00539-BJR-DAR Document 102 Filed 03/19/13 Page 1 of 40

INTRODUCTION

In August 2008, Kifah Jayyousi led a Muslim group prayer at the Communications

Management Unit (CMU), to which he had recently been transferred. During that group prayer,

he told his fellow prisoners that they had been sent to a psychologically abusive unit because

they were Muslim and urged his fellow prisoners to “stand firm, stand strong, to stand steadfast”

even though the CMU is “a hard place.” Prison officials did not interrupt Mr. Jayyousi’s speech,

nor was there a finding that he had violated any prison rules. In fact, the unit manager and

warden subsequently recommended Mr. Jayyousi’s transfer out of the CMU, citing his good

conduct and rapport with staff and other prisoners. But Leslie Smith, Chief of the Bureau of

Prisons Counter Terrorism Unit (CTU), disagreed with that recommendation. More than two

and a half years after the group prayer, he insisted that Mr. Jayyousi remain at the CMU because

of what Mr. Jayyousi had said. Mr. Jayyousi, he claimed, was “a charismatic individual” who

had made “highly inflammatory commentaries.” Mr. Jayyousi remains at the CMU to this day.

Daniel McGowan, meanwhile, is a prominent advocate for a range of political causes,

and the subject of an Oscar-nominated documentary, If a Tree Falls. He has published numerous

articles and blog pieces expressing his views, both before and during his incarceration. He has

urged unity in the environmental movement, and encouraged new members of social justice

movements to learn from errors of the past and to focus on issues of global concern. Despite his

perfectly clean disciplinary record, Mr. McGowan was designated to a CMU in August 2008.

After several staff recommendations that he be released from the CMU, based on his spotless

record and good rapport with staff and other prisoners, he was finally transferred back to general

population in October 2010, only to be abruptly redesignated to a CMU in February 2011. At

the time, Mr. McGowan received no meaningful explanation for why he was twice singled out


2

for CMU designation. Documents obtained in this litigation, however, reveal that Mr. Smith

took issue with Mr. McGowan’s political speech and views in recommending both his initial

designation and his later redesignation to the CMU.

Even in prison, the First Amendment does not countenance this type of unjustified and

content-based retaliation for protected speech.

Defendants’ seek to dismiss Plaintiffs’ retaliation claims, arguing that they must fail so

long as defense counsel can come up with a hypothetical penological interest served by

Plaintiffs’ CMU designation. As demonstrated below, that is simply not the standard that

governs a First Amendment retaliation claim. Defendants go on to argue that Plaintiffs’ core

political and religious speech is not protected by the First Amendment. But Supreme Court

precedent analyzing both speech within a prison, and speech sent by a prisoner to the outside

world, belies this argument. Defendants rely on these same points to argue that Plaintiffs’ claims

against Mr. Smith should be dismissed on qualified immunity grounds, along with the assertion

that the First Amendment law relevant to this case is not clearly established. But as Plaintiffs

demonstrate below, decades of precedent protect Mr. Jayyousi and Mr. McGowan’s speech.

Because Defendants’ qualified immunity argument substantially overlaps with the question of

whether Plaintiffs have adequately pled a claim for relief, Plaintiffs address both issues together.

Further, Defendants’ argument that the Prison Litigation Reform Act (PLRA) precludes

Plaintiffs’ damages claims ignores the plain meaning of that statute. And Plaintiffs take no

position as to Defendants’ motion to dismiss certain claims on mootness grounds.


3

STATEMENT OF FACTS

This case arises from the federal Bureau of Prisons’ (BOP) establishment, in 2006 and

2008, of two small and experimental prison units known as “Communications Management

Units” or “CMUs.” See First Amended Complaint (“FAC”) (Docket #88-1) at ¶ 1. The CMUs

are explicitly designed to isolate certain prisoners from the rest of the prison population and the

outside world by limiting their access to telephone calls and social visits, including a permanent

ban on contact visits. Id. ¶ 2. Daniel McGowan and Kifah Jayyousi are low security prisoners

with innocuous disciplinary histories and no record of management or communications-related

problems. Id. ¶¶ 132, 133, 142, 148, 183, 184, 191. Yet, they were designated to the CMUs and

thereby subjected to communications restrictions harsher than those found in comparable prison

facilities – and in some instances, harsher even than those restrictions found in super-maximum

security confinement. Id. ¶ 58. Until discovery, Plaintiffs received no meaningful explanation of

why they were designated to the CMU; to this day they have not been given a meaningful

opportunity to demonstrate that they do not belong there. Id. ¶¶ 135-39, 147, 187, 188.

On November 20, 2012, this Court granted Plaintiffs permission to file a First Amended

Complaint, bringing two new retaliation claims based on documents obtained in discovery. See

Memorandum Order Granting Plaintiffs’ Motion to Amend the Complaint (Docket #85).

Plaintiffs have alleged that these documents, memoranda authored by Mr. Smith, reveal that Mr.

McGowan was designated to the CMU in direct response to protected First Amendment activity.

The documents also reveal that Mr. Smith successfully overruled recommendations at the facility

level that Mr. Jayyousi be transferred to general population and ensured that Mr. Jayyousi be

retained at the CMU based on First Amendment-protected religious and political speech.


4

I. Kifah Jayyousi’s Religious and Political Speech has Resulted in his

Continued CMU Designation.

Kifah Jayyousi has been confined at a CMU since June 2008. Id. ¶¶ 187, 194.

According to the BOP, this initial designation was based on the nature of his criminal conviction.

Id. ¶ 187. While in the CMU, in accordance with BOP rules allowing for inmate-led prayer, Mr.

Jayyousi served as a Muslim prayer leader for Jumah prayer. Id. ¶ 189. His sermon was

transcribed by the BOP; those transcripts are submitted herein as Exhibit A.1 Although Mr.

Smith later characterized this speech as incitement, the transcript shows that Mr. Jayyousi did not

at any point advocate violence, terrorism or intimidation, or condemn any religious, ethnic,

racial, or regional group. FAC ¶ 189; see also Exhibit A. Instead, he expressed his belief that

CMUs were for Muslim prisoners, that he and his fellow prisoners were not criminals, that the

units were evil and psychologically abusive, and that criminal cases against Muslims destroyed

good U.S. citizens and tore them away from their families. Id. ¶ 197; Exhibit A. He urged his

fellow prisoners to “stand firm, stand strong, to stand steadfast” even though the CMU is “a hard

place.” Exhibit A. Prison officials directly observed the speech, and allowed him to finish

without interruption. Id. An incident report was drafted, charging Mr. Jayyousi with

Encouraging a Group Demonstration, and a disciplinary hearing was held. FAC ¶ 191. The

charge was dismissed and expunged from Mr. Jayyousi’s disciplinary record. Id.

1 Defendants have agreed to lift the protective order from these documents so that they can be

publicly filed with this brief. Like the documents submitted by Defendants with their motion to dismiss,

these documents were “referred to in the complaint and [are] central to plaintiff’s claims.” Vanover v.

Hantman, 77 F. Supp.2d 91, 98 (D.D.C. 1999), aff’d, 38 F. App’x 4 (D.C. Cir. 2002). As such, they “may

be considered without converting the motion to one for summary judgment.” Id.; see also Krooth &

Altman v. N. Am. Life Assur. Co., 134 F. Supp. 2d 96, 99 (D.D.C. 2001) (same); Lipton v. MCI Worldcom,

Inc., 135 F. Supp. 2d 182, 186 (D.D.C. 2001) (same). Plaintiffs intend to rely on substantially more

evidence than these few documents to prove their retaliation claims; like Defendants, they do not seek to

convert this motion to dismiss into a motion for summary judgment.


5

On February 22, 2011, the Marion CMU Unit Manager authored a memorandum

requesting that Mr. Jayyousi be transferred out of the CMU. Id. ¶ 195. The Unit Manager noted

that “[s]ince his arrival in the Terre Haute CMU and continuing while at USP Marion, Jayyousi

has maintained clear conduct and a good rapport with staff and other inmates. He has completed

numerous ACE/Education courses. USP Marion staff have noted no continuation of actions

which precipitated his placement in the CMU.” Id. In the same memorandum, the USP Marion

Warden noted that “in the time he has been here, he has acted within the regulations set forth.

He has not presented issues which cause [illegible] concern.” Id.

In a March 22, 2011 memorandum, Defendant Leslie Smith acknowledged that the

Warden at USP Marion had submitted a recommendation that Mr. Jayyousi should be transferred

from the CMU. Id. ¶ 196. However, Mr. Smith disagreed with that recommendation, and

recommended that Mr. Jayyousi be kept at the CMU. Id. ¶ 197. Defendants have submitted this

memorandum as Exhibit 2 to their Motion to Dismiss. In the memorandum, authored two and a

half years after the prayer service in question, Mr. Smith wrongfully claimed:

During one such prayer, which was directly observed by staff, inmate Jayyousi made

statements which were aimed at inciting and radicalizing the Muslim inmate population

in THA CMU. Characteristics, behaviors and unacceptable activities which describe an

individual involved in prison radicalization and recruitment were displayed by inmate

Jayyousi and included: a charismatic individual, who make highly inflammatory

commentaries which elicit violence, terrorism or intimidation, and speech that disrespects

or condemns other religious, ethnic, racial or religious groups.

Compare Defendants’ Consolidated Motion to Dismiss (“MTD”) (Docket #99) at Exhibit 2 with

Exhibit A. In the intervening time between the prayer service and Mr. Smith’s Memorandum,

Mr. Jayyousi incurred no disciplinary infractions. FAC ¶ 183. He has been held at the CMU

ever since. Id. ¶ 19.


6

II. Daniel McGowan’s Political Speech Resulted in his Designation and

Redesignation to the CMU.

Daniel McGowan was first designated to a CMU in August 2008, after serving a year in a

low security prison without a single disciplinary infraction. Id. ¶¶ 130-33, 135. As explanation,

he was provided only a one-page notice of transfer, which was compromised of information

about his offense conduct that is demonstrably false, id. ¶ 136, and which the BOP has refused to

correct. Id. ¶¶ 137, 138. A memorandum written by Mr. Smith on March 27, 2008, and made

available to Mr. McGowan for the first time in February 2012 in discovery, more fully explains

Mr. McGowan’s CMU designation. Id. ¶ 134; see also MTD at Exhibit 3. In that memorandum,

Mr. Smith states:

In a letter published on the Portland Independent Media, inmate McGowan described the

cooperation with government authorities by his co-defendants and complained about

support provided to these cooperating defendants, from the environmental community,

for persons who he claimed were responsible for the, “betrayal of (their) friends and

allies.”

For an interview in the Earth First! Journal, inmate McGowan described “snitches,”

particularly his co-defendants, and made statements to discourage others from

cooperating. He attempted to educate new members to the movement on what he

considered errors of the past by cooperators. On direct action, inmate McGowan stated

such tactics may not be the best option, but often have the most desired effect and

detailed his support for such actions by members of the community. Regarding direct

action, inmate McGowan stated: “We need to have serious conversations about whether

militancy is truly effective in all situations. Certainly, direct action is a wonderful tool,

but from my experience, it may not be the most effective one at all times or in all

situations.” “In some instances, direct action is the most effective tactic.” “Actions that

are understood by the public and seen as logical can have a positive impact on pre-

existing campaigns and struggles.” “Despite the fact that my particular case is over, it’s

imperative that we discuss tactics and strategies in a way that people can actually hear

and listen to what each other is saying.”

In an article for Earth First! Journal, inmate McGowan discussed the movement, tactics

and cooperators as related to the so-called “Green Scare.” Inmate McGowan was critical

of cooperating defendants and supportive of direct action: “As things get worse in our

society and as our demands for ecological sanity and compassion for animals get ignored,

many people inevitably lose faith in polite ways of effective change and choose more

radical methods….”


7

In a social letter, inmate McGowan discussed bringing unity to the radical environmental

movement by focusing on larger, global issues. Inmate McGowan has been publishing

his points of view on the internet in an attempt to act as a spokesman for the movement.

Id. The memorandum goes on to list Earth First! Journal, Bite Back, and Portland Independent

Media as websites on which Mr. McGowan had published his writings. Id.

On March 9, 2010, after almost two years in the CMU, the Warden at USP Marion and

the Unit Manager at the Marion CMU requested in writing that Mr. McGowan be transferred out

of the CMU to general population. Id. ¶ 142. They noted that, since his arrival at the CMU, Mr.

McGowan had “maintained clear conduct and a good rapport with staff and other inmates . . . .

While he has had several incoming publications and letters rejected based on content, USP

Marion staff have noted no continuation of actions which precipitated his placement in the

CMU.” Id. On March 22, 2010, Mr. Smith authored another memorandum in which he opposed

that recommendation. Id. ¶ 143; see also MTD Exhibit 5. He notes: “Through his

communications, inmate McGowan continues to provide guidance, leadership and direction for

activities, publications and movement practices in order to further the goals of radical

environmental groups.” Id.

In August 2010, CMU staff once again recommended Mr. McGowan’s transfer from the

CMU to general population, and in October 2010, Mr. McGowan was transferred from the CMU

to general population at USP Marion. Id. ¶ 145. He remained there until February 2011,

incurring no disciplinary infractions. Id.

On February 1, 2011, Mr. Smith authored a memorandum recommending that Mr.

McGowan be redesignated to a CMU. Id. ¶ 146. Mr. Smith claimed that Mr. McGowan had

directed his wife to “circumvent inmate communication monitoring by having documents mailed

to him under the guise of attorney-client privileged communication.” Id. The documents at


8

issue were CTU reports including information about Mr. McGowan, that were leaked to the

public through the website www.publicintelligence.net. Id. While Plaintiffs’ counsel have now

properly obtained these reports through discovery and plan to introduce some as evidence to

prove their claims against Defendants, neither Plaintiffs nor Plaintiffs’ counsel was aware of

their existence before the leak. According to Smith’s memorandum, after the leak Mr.

McGowan asked his wife to ask his attorneys whether they would mail him a copy of the

documents, and this constituted an act of “circumventing monitoring through the use of legal

mail.” Id. In addition, Mr. Smith noted that:

[I]nmate McGowan’s communication with persons in the community since his release

from MAR CMU has continued to demonstrate his support for anarchist and radical

environmental terrorist groups, and presented his desire to remain in an influential and

leadership position among these groups . . . . Prior to the completion of his 6 months [sic]

step-down from the CMU, inmate McGowan has demonstrated the conditions for his

original designation still exist through his espousing support for anarchist and radical

environmental terrorist groups.

Id. Shortly thereafter, on February 24, 2011, Mr. McGowan was abruptly redesignated to the

CMU at Terre Haute and held there until December 2012, when he was transferred to a halfway

house in anticipation of his release from BOP custody. Id. ¶ 147, MTD at 5. Mr. McGowan

was not disciplined for any mail or telephone violation, nor did he receive any warning from

BOP officials about his conversation with his wife. FAC ¶ 148.

ARGUMENT

STANDARD OF REVIEW

On a motion to dismiss brought for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6), the Court must “‘treat the complaint’s factual allegations as true . . . and

must grant [Plaintiffs] the benefit of all inferences that can be derived from the facts alleged.’”

Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 677 (D.C. Cir. 2009) (citation omitted). A


9

court may not dismiss so long as the pleadings “suggest a ‘plausible’ scenario that shows that the

pleader is entitled to relief.” Id. at 681. Indeed, a court may not grant a motion to dismiss for

failure to state a claim “‘even if it strikes a savvy judge that . . . recovery is very remote and

unlikely.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Instead, a claim

“has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

129 S.Ct. 1937, 1949 (2009).

I. PLAINTIFFS HAVE ADEQUATELY PLED RETALIATION, AND DEFENDANT

LESLIE SMITH IS NOT ENTITLED TO QUALIFIED IMMUNITY.

In moving to dismiss Plaintiffs’ retaliation claims, Defendants either misrepresent or

misunderstand the requirements of a retaliation claim, and fail to grapple with decades of clear

precedent that protects the speech at issue here. Applying the correct standard, Plaintiffs have

adequately pled the three requirements of a retaliation claim. First, Plaintiffs have plausibly

alleged that they have engaged in speech protected by the First Amendment. Second,

Defendants do not dispute, and this Court has already assumed, that CMU designation is

sufficient to chill lawful speech. Finally, Plaintiffs have plausibly alleged that they were

confined to the CMU because of their protected speech. That is all that is required to survive a

motion to dismiss.

A. Defendants Misstate the Requirements for a Retaliation Claim.

Defendants’ motion to dismiss is premised on a misstatement of the standard for pleading

a First Amendment retaliation claim. In his 2011 ruling on Defendants’ first motion to dismiss,

Judge Urbina correctly set forth the standard:

A prisoner alleging a First Amendment claim of retaliation must allege that “(1) he

engaged in conduct protected under the First Amendment; (2) the defendant took some

retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's position


10

from speaking again; and (3) a causal link between the exercise of a constitutional right

and the adverse action taken against him.” Banks v. York, 515 F. Supp. 2d 89, 111

(D.D.C. 2007) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); Friedl v. City

of New York, 210 F.3d 79, 85 (2d Cir. 2000)).

Aref v. Holder, 774 F. Supp. 2d 147, 169 (D.D.C. 2011). Applying this standard, the Court

denied Defendants’ motion to dismiss Plaintiffs’ first set of retaliation claims, which were

supported by fewer facts than now appear in the First Amended Complaint.2 Id.

Rather than following the clear standard laid out by Judge Urbina, Defendants now

advance a misleading and unsupported test for pleading retaliation. According to Defendants, a

prison official may take adverse action against a prisoner because of his First Amendment

protected speech, so long as defense counsel can point to any purportedly legitimate penological

purpose that is advanced by the official’s action, even if that purpose played no part in the prison

official’s actual motivation. See MTD at 13 (“in addition to [the three elements set forth in

Judge Urbina’s order] the plaintiff must allege ‘that the retaliatory action does not advance

legitimate penological goals, such as preserving institutional order and discipline’”) (citations

omitted).

This argument, however, has been explicitly foreclosed by the Supreme Court. In

Crawford-El v. Britton, 523 U.S. 574 (1998), the Court considered the burden of proof

applicable to a prisoners’ claim that his property was purposefully misdirected in retaliation for

exercising his First Amendment rights. The dissent argued unsuccessfully for exactly the

standard that Defendants try to resurrect today. See id. at 612 (Scalia, J. dissenting) (arguing for

a rule that “once the trial court finds that the asserted grounds for the official action were

objectively valid (e.g., the person fired for alleged incompetence was indeed incompetent), it

would not admit any proof that something other than those reasonable grounds was the genuine 2 Mr. Jayyousi did not raise a retaliation claim in the initial Complaint, as he did not then have

access to the documents, received in discovery, that form the basis for his current claim.


11

motive (e.g., the incompetent person fired was a Republican).”). A majority of the Supreme

Court disagreed, finding no justification in precedent or policy for a “rule that places a thumb on

the defendant’s side of the scales when the merits of a claim that the defendant knowingly

violated the law are being resolved.” Crawford-El, 523 U.S. at 593-94. The Court reasoned that

“the policy concerns underlying Harlow [v. Fitzgerald, 457 U.S. 800 (1982)] do not support …

[an] unprecedented proposal to immunize all officials whose conduct is ‘objectively valid,’

regardless of improper motive.” Id.

Under Crawford-El, a prison official may not defeat a retaliation claim “simply by

articulating a general justification for a neutral process, when there is a genuine issue of material

fact as to whether the action was taken in retaliation for the exercise of a constitutional right.”

Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that prison has a legitimate

penological interest in stopping gang activity, but “if, in fact, the defendants abused the gang

validation procedure as a cover or a ruse to silence and punish Bruce because he filed grievances,

they cannot assert that Bruce’s validation served a valid penological purpose, even though he

may have arguably ended up where he belonged”). Thus, even where prison officials have

discretion to move a prisoner to a less desirable location, an “ordinarily permissible exercise of

discretion may become a constitutional deprivation if performed in retaliation for the exercise of

a [F]irst [A]mendment right.” Banks v. York, 515 F. Supp. 2d 89, 110-113 (D.D.C. 2007) (citing

Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 585 (D.C. Cir. 2002) (prisoner’s transfer to

another prison and reclassification as a “special offender” were actionable notwithstanding

Bureau of Prisons’ “long-recognized discretion to decide where to house prisoners”)); see also

Kimberlin v. Quinlin, 199 F. 3d 496 (D.C. Cir. 1999) (“even if appellants provide an objectively

valid reason for their actions in this case, the District Court must still inquire into whether there


12

is a disputed issue of fact as to whether appellants were actually motivated by an illegitimate

purpose”).

The precedent Defendants cite is not contrary to this well-settled law. Those cases do

instruct a court to consider whether “the retaliatory action does not advance legitimate

penological goals.” See Byrd v. Mosley, 942 F. Supp. 642, 645 (D.D.C. 1996); Anderson-Bey v.

District of Columbia, 466 F. Supp. 2d 51, 65 (D.D.C. 2006); Pryor-El v. Kelly, 892 F. Supp. 261,

275 (D.D.C. 1995). But this is simply a reference to the Turner v. Safley standard, which, in

analyzing speech within a prison, requires the court to consider not just whether a prisoner’s

speech implicates First Amendment concerns, but also whether that speech may lawfully be

infringed by legitimate penological concerns. See Anderson-Bey, 466 F. Supp. 2d at 66; Pryor-

El, 892 F. Supp. at 275. Under Turner, a retaliation claim requires the Court to consider the

legitimacy of any penological interests that actually motivated the adverse action. Plaintiffs

undertake that inquiry in Section B, below. But Crawford-El forecloses Defendants’ assertion

that the Court should simply accept any penological interest articulated by counsel, thus

insulating from review Defendants’ true motivations. Improper motive matters in a retaliation

case, and Defendants may only defend as legitimate the actual reason Mr. Jayyousi and Mr.

McGowan were designated, retained and redesignated to the CMU.

B. Kifah Jayyousi and Daniel McGowan Have Plausibly Alleged Violations of

their Clearly Established First Amendment Rights.

Under the first prong of a retaliation claim, a prisoner must allege that he engaged in

speech or conduct protected by the First Amendment. See Banks, 515 F. Supp. 2d at 111.

Notably, Defendants do not contest that Mr. Jayyousi and Mr. McGowan engaged in speech

under the meaning of the First Amendment. Instead, they claim that, in light of restrictions on a

prisoner’s right to freedom of expression, the speech at issue here is simply not protected. See


13

MTD at 18-19, 24-25, 29-30. Defendants are incorrect. The Supreme Court has long made it

clear that “[t]here is no iron curtain drawn between the Constitution and the prisoners of this

country.” Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). “Inmates clearly retain protections

afforded by the First Amendment,” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987), and

any restrictions on their speech must be consistent with “legitimate penological objectives of the

corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). A prisoner’s First

Amendment rights include the right to be free from interference that “is based on the content of

[his] speech or proposed speech,” Kimberlin v. Quinklan, 199 F.3d 496, 502 (D.C. Cir. 1999), or

inflicted “solely because of [his] beliefs, whether religious or secular.” Sostre v. McGinnis, 442

F.2d 178, 189 (2d Cir. 1971) (citing Cooper v. Pate, 378 U.S. 546 (1964)); see also Sczerbaty v.

Oswald, 341 F.Supp. 571, 573 (S.D.N.Y. 1972) (punishment “solely because of the inmate’s

beliefs, whether religious or secular, violates his constitutional rights”) (also citing Cooper).

Accordingly, courts have held for decades that a prisoner’s “[F]irst [A]mendment right to

freedom of expression encompasses the right to express himself without punitive retaliation.”

Simmat v. Manson, 535 F. Supp. 1115, 1117-18 (D. Conn. 1982).

Proceeding from this premise, courts examine four factors to determine when a prisoner’s

speech inside prison may be restricted. See Turner, 482 U.S. at 90. Courts must consider: 1)

whether there is a valid, rational connection between the prison regulation and the legitimate

governmental interest put forward to justify it; 2) whether there are alternative means of

exercising the right that remain open to prison inmates; 3) the impact accommodation of the

asserted constitutional right will have on guards and other inmates, and on the allocation of

prison resources generally; and 4) whether there are ready alternatives to the restriction to secure


14

the penological interest. Id. at 89-90. Applying these factors to Mr. Jayyousi’s speech compels a

finding that it was protected by well-established precedent.

An even stricter standard applies when a prisoner’s speech is directed to an audience

outside the prison context – like Mr. McGowan’s speech at issue here. First, restrictions on a

prisoner’s outgoing speech “must further an important or substantial governmental interest

unrelated to the suppression of expression.” Procunier v. Martinez, 416 U.S. 396, 413 (1974);

see also Thornburgh v. Abbott, 490 U.S. 401, 408-12 (1989) (overruling Martinez on other

grounds but explicitly affirming its analysis of outgoing correspondence). “Second, the

limitation of First Amendment freedoms must be no greater than is necessary or essential to the

protection of the particular governmental interest involved.” Martinez, 416 U.S. at 413-14. In

light of this standard, Mr. McGowan’s speech, which was comprised of correspondence with

non-prisoners and published writing, was plainly protected.

i. Mr. Jayyousi’s Speech Is Protected by the First Amendment.

Plaintiffs allege that, despite the CMU unit manager’s and the prison warden’s

recommendations of a transfer to general population, Defendants continue to hold Mr. Jayyousi

at the CMU because of the content of Mr. Jayyousi’s speech rather than any legitimate

penological reason. See FAC ¶¶ 195-99. Defendants, in contrast, argue that Mr. Jayyousi’s

speech was not protected by the First Amendment because, according to Mr. Smith, it “posed a

threat of a ‘group demonstration’ and was therefore ‘detrimental to the security, good order, or

discipline of the institution.’” MTD at 18 (quoting Smith memorandum). By telling other

prisoners at a BOP-sanctioned group prayer meeting that the CMU was “evil,” that “not even

staff understood or accepted the purpose of the unit,” that Muslim inmates should “stand

together,” and should not cooperate with the government, Defendants claim that Mr. Jayyousi


15

was “clearly ‘encouragin[ing] adversary relations with institution officials.’” Id. at 19 (citations

omitted).

First Turner Factor: Defendants argue that Mr. Jayyousi’s speech provided a

purportedly “legitimate governmental interest . . . to justify” his retention at the CMU. Turner,

482 U.S. at 89. But an examination of Mr. Jayyousi’s allegations establish that that there is no

“valid, rational connection” between the two. Id.

First, Mr. Smith grossly mischaracterized Mr. Jayyousi’s speech. Defense counsel’s brief

largely ignores these mischaracterizations, excluding from reference Mr. Smith’s claims, in his

March 22, 2011 memorandum justifying Mr. Jayyousi’s continued CMU designation, that:

During one such prayer, which was directly observed by staff, inmate Jayyousi made

statements which were aimed at inciting and radicalizing the Muslim inmate population

in THA CMU. Characteristics, behaviors and unacceptable activities which describe an

individual involved in prison radicalization and recruitment were displayed by inmate

Jayyousi and included: a charismatic individual, who make highly inflammatory

commentaries which elicit violence, terrorism or intimidation, and speech that

disrespects or condemns other religious, ethnic, racial or religious groups.

See FAC ¶ 197. Mr. Jayyousi denies making such comments. Id. ¶ 189. And the BOP

transcripts of Mr. Jayyousi’s sermon include no evidence whatsoever that he advocated violence,

terrorism, intimidation, disrespect or condemnation of other groups. See Exhibit A.

Second, Defendants’ claims that Mr. Jayyousi’s speech encouraged a group

demonstration, was detrimental to the security, good order, or discipline of the institution, and

encouraged adversary relations with institution officials, are neither borne out by the record nor

supported by the law. First, Mr. Jayyousi’s speech did not result in a disciplinary violation – in

contrast to the cases on which Defendants rely. See, e.g., Goff v. Dailey, 991 F.2d 1437, 1438-39

(8th Cir. 1993) (finding that punishment for speech was reasonable where, inter alia, the prisoner

was found guilty of verbal abuse, threats or intimidation, and obstructive or disruptive conduct in


16

a disciplinary proceeding); Watkins v. Kasper, 599 F3d 791, 794 (7th Cir. 2010) (same, where

the prisoner was found guilty of disorderly conduct). Mr. Jayyousi was initially charged with

Encouraging a Group Demonstration, but after a disciplinary hearing was held, the charge was

dismissed and expunged from his disciplinary record. See FAC ¶ 191. That he was cleared of

any wrongdoing strongly contradicts any claim that his speech posed danger to the institution.

See, e.g., Bennett v. Goord, 343 F.3d 133, 138 (2d Cir. 2003) (prisoner’s retaliation claim was

supported by the fact that disciplinary charges were subsequently found to have been

unjustified); Rodriguez v. McClenning, 399 F. Supp. 2d 228, 240 (S.D.N.Y. 2005) (same).

Similarly, the fact that the prison officials who “directly observed” the speech, FAC

¶ 197, did not intervene or stop the speech sharply undermines Mr. Smith’s claim that Mr.

Jayyousi posed a danger of incitement or of a group demonstration – once again in contrast to the

case law on which Defendants rely. See Freemen v. Tex. Dep’t of Criminal Justice, 369 F.3d

854, 858 (5th Cir. 2004) (noting prisoner was ordered to stop reciting the statement he later

claimed was the basis of a retaliatory transfer while he was delivering it at a religious service and

that he was escorted from the chapel).

Moreover, Mr. Jayyousi’s speech did not involve “concerted group activity, or

solicitation therefor.” Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 129 (1977). In

Jones, the Supreme Court drew a distinction between a prisoner’s speech that involves “the

simple expression of individual views” and “an invitation to collectively engage in legitimately

prohibited activity,” noting that the former is protected by the First Amendment while the latter

is not. Id. at 131-32. Defendants have failed to explain how Mr. Jayyousi’s speech would lead

to concerted and prohibited group activity, or to show that he solicited such activity. Indeed, Mr.

Jayyousi’s speech included only his individual views – that the CMUs were for Muslim


17

prisoners, that he and his fellow prisoners were not criminals, that the units were evil and

psychologically abusive, and that criminal cases against Muslims destroyed good U.S. citizens

and tore them away from their families. FAC ¶ 197. Mr. Jayyousi’s generic statement that

Muslim prisoners should “stand firm, stand strong, [] stand steadfast,” Exhibit A at 2, simply

does not involve “an invitation to collectively engage” in particular and forbidden conduct akin

to “organized union activity within the prison walls.” Jones, 433 U.S. at 132.

Nor have Defendants explained how Mr. Jayyousi’s speech constitutes “encouragement

of adversary relations with[] institution officials.” Id. at 133. Mr. Jayyousi’s speech did not

even mention institution officials, except to purportedly state that “not even the staff understood

or accepted the purpose of the unit.” FAC ¶ 197.3 This stands in marked contrast to cases

“where the focus [of the speech] is on the presentation of grievances to, and encouragement of

adversary relations with, institution officials,” Jones, 433 U.S. at 133, or cases where a prisoner

directly challenges an official’s authority in front of other prisoners, see, e.g., Watkins, 599 F.3d

at 797 (“by openly challenging [the law librarian’s] directives in front of other prisoner law

clerks, Watkins impeded her authority and her ability to implement library policy”). Again,

there is nothing to undermine Mr. Jayyousi’s plausible allegations that his speech fell within the

First Amendment’s protections and justified no special restrictions.

That there is no valid, rational connection between Mr. Jayyousi’s speech and his

retention at the CMU is also demonstrated by the events between his speech and Mr. Smith’s

memorandum. The speech in question occurred in August 2008. See FAC ¶ 189. Mr. Smith

relied on that speech as the rationale for Mr. Jayyousi’s ongoing CMU retention in March 2011 –

3 It should be noted that, while Mr. Smith’s memorandum ascribes this statement to Mr. Jayyousi,

it does not appear in the transcripts of Mr. Jayyousi’s speech provided by Defendants in discovery. See

Exhibit A. Further discovery is therefore necessary to determine whether or not Mr. Smith accurately

quoted Mr. Jayyousi when he relied on this alleged statement in his March 22, 2011 memorandum.


18

over two and a half years later. Id. ¶ 196. In the intervening time, Mr. Jayyousi incurred no

disciplinary infractions. Id. ¶ 183. There is no evidence that his speech resulted in any group

demonstration or detriment to the security, good order, or discipline of the institution. In fact,

the only evidence is to the contrary. In February 2011, the CMU Unit Manager and the Warden

of Terre Haute recommended that Mr. Jayyousi be transferred out of the CMU, stating:

Since his arrival in the Terre Haute CMU and continuing while at [the] USP Marion

[CMU], Jayyousi has maintained clear conduct and a good rapport with staff and other

inmates . . . . USP Marion staff have noted no continuation of actions which precipitated

his placement in the CMU . . . in the time he has been here, he has acted within the

regulations set forth. He has not presented issues which cause [illegible] concern.

FAC ¶ 195 (emphasis added). This recommendation, which specifically cites Mr. Jayyousi’s

clear conduct, good rapport with staff, comportment with prison regulations, and the unit

manager and warden’s lack of concerns about him, directly undermines and contradicts

Defendants’ assertion that Mr. Jayyousi’s speech or its purported consequences provide a valid,

rational reason for his retention at the CMU. Given Mr. Smith’s unfounded characterization of

Mr. Jayyousi’s speech as involving statements about violence, terrorism, intimidation, and

condemnation of other groups, and the fact that in the two and a half years between the speech

and Mr. Smith’s memorandum there is not a shred of evidence of any security issue arising from

that speech, it is apparent that the connection between the speech and any valid penological

purpose in retaining Mr. Jayyousi at the CMU is “so remote as to render [that decision] arbitrary

or irrational.” Turner, 482 U.S. at 89-90.

Indeed, where there is no reliable evidence that retaining Mr. Jayyousi at the CMU is

rationally related to any legitimate security concerns about his speech, the only reasonable

conclusion at this juncture is that it was impermissibly based on disagreement with the content of

that speech. Id. at 90 (“prison regulations restricting inmates’ First Amendment rights [must]


19

operate[] in a neutral fashion, without regard to the content of the expression”). Though

Defendants may disagree with Mr. Jayyousi’s views, any such disagreement simply does not

suffice to strip his speech of First Amendment protection.

Second Turner Factor: In Turner, the Supreme Court noted that “[w]here ‘other

avenues’ remain available for the exercise of the asserted right, courts should be particularly

conscious of the measure of judicial deference owed to the corrections officials . . . in gauging

the validity of the regulations.” 482 U.S. at 90 (internal citations and quotations omitted).

Defendants object to Mr. Jayyousi’s speech based on what he said, not where, how, or when he

said it. Thus, Mr. Jayyousi is apparently constrained from engaging in religious or political

speech anywhere in the CMU, to anyone, and at any time, without risk of punishment. See FAC

¶ 40 (many areas in each CMU are currently wired for audio and video recording). There are

therefore no alternative means for Mr. Jayyousi to express his beliefs free from retaliation. See

Sostre, 442 F.2d at 189 (citing Cooper, 378 U.S. at 546); Sczerbaty, 341 F.Supp. at 573.

Third Turner Factor: In assessing the impact of the asserted constitutional right on

prison resources, staff and other inmates, the Supreme Court has noted that “[w]hen

accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on

prison staff, courts should be particularly deferential to the informed discretion of corrections

officials.” Turner, 482 U.S. at 90. As explained above, there is no evidence that Mr. Jayyousi’s

speech has strained prison resources, contributed to unrest among the inmate population,

enhanced his status as a prisoner, or resulted in danger to himself or others. See Abu-Jamal v.

Price, 154 F.3d 128, 134 (3d Cir. 1998) (finding no significant impact of a prisoner’s speech in

the absence of these factors). On the contrary, the CMU Unit Manager and prison warden

specifically noted just weeks before the decision to retain Mr. Jayyousi at the CMU that he had


20

“not presented issues which cause . . . concern,” and that he had “maintained clear conduct and a

good rapport with staff and other inmates.” FAC ¶ 195 (emphasis added). Thus, his speech has

had no “ripple effect” that would justify the restrictions imposed on Mr. Jayyousi.

Fourth Turner Factor: The final Turner factor inquires as to whether there are ready

alternatives to the restriction to secure the asserted penological interest. The existence of

“obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an

exaggerated response to prison concerns.” Turner, 482 U.S. at 91. Where Mr. Jayyousi’s speech

has not “attain[ed] a special status, threaten[ed] corrections officers, or incite[d] the inmate

population, a more narrow [restriction] could sufficiently protect the [BOP’s] security interests.”

Abu-Jamal, 154 F.3d at 135. Indeed, a ready alternative was specifically recommended by CMU

staff – namely, Mr. Jayyousi’s transfer into general population, FAC ¶ 195 – and so is readily

available to Defendants.

Mr. Jayyousi’s speech was simply an expression of his religious and political beliefs. It

is clearly established law that a prisoner’s right to express such beliefs is protected by the First

Amendment in the absence of a countervailing and legitimate penological interest. O’Lone, 482

U.S. at 348; Crawford-El, 523 U.S. at 589 n.10; Sostre, 442 F.2d at 189 (citing Cooper, 378 U.S.

at 546); Sczerbaty, 341 F.Supp. at 573; Simmat, 535 F. Supp. at 1117-18. Moreover, Mr.

Jayyousi had a clearly established right to be free from government interference “based on the

content of [his] speech.” Kimberlin, 199 F.3d at 502 (“This right without doubt was clearly

established in 1988”). These standards, and all the case law cited by and relied upon by

Plaintiffs, were plainly governing when Mr. Smith authored the memorandum in question here.

See supra. Mr. Jayyousi has plausibly alleged that he engaged in political and religious speech,

and that there was no legitimate penological reason to restrict that speech. He has plausibly


21

alleged that the Defendants’ actions were motivated by its content. Thus, he has stated a claim

that his speech has been unconstitutionally restricted.

ii. Mr. McGowan’s Speech Is Protected by the First Amendment.

Defendants also claim that Mr. McGowan’s speech is not protected by the First

Amendment. MTD at 29. In so arguing, they cite to what Mr. Smith describes as letters and

interviews with members of the public and the press describing government cooperators as

“snitches,” efforts to discourage others from cooperating with the government, and endorsement

of direct action, which they characterize as “discussions of criminal activities.” Id. Defendants

further claim that Mr. McGowan’s redesignation to the CMU was based on a purported effort to

circumvent inmate communication monitoring after Mr. McGowan asked his wife to request that

his attorneys send him some documents. Id.

Defendants are again selective in what they highlight from Mr. Smith’s memoranda.

Along with speech that Defendants incorrectly characterize as related to criminal activity,

Defendants fail to mention that Mr. Smith also relied on the following speech in justifying Mr.

McGowan’s designation and redesignation to the CMU, none of which could possibly be

described as a discussion of criminal activity, but instead plainly expresses Mr. McGowan’s

political beliefs and ideas:

• Mr. McGowan’s attempts to “unite” environmental and animal liberation movements;

• Mr. McGowan’s attempt to “educate” new members of the movement about what he

considers errors of the past;

• Mr. McGowan’s writings about “whether militancy is truly effective in all situations”;

• A social letter discussing bringing unity to the radical environmental movement by

focusing on larger global issues;

• The fact that Mr. McGowan “has been publishing his points of view on the internet in an

attempt to act as a spokesperson for the movement;”

• A list of organizations that have published Mr. McGowan’s writings, including Earth

First! Journal, Bite Back, and Portland Independent Media.


22

See FAC ¶ 134; see also Docket #99-3 (3/27/08 Smith Memorandum).

• An observation that, “through his communications, inmate McGowan continues to

provide guidance, leadership and direction for activities, publications and movement

practices in order to further the goals of radical environmental groups.”

See Docket #99-5 (3/22/10 Smith Memorandum).

• An observation that “McGowan’s communications with persons in the community since

his release from MAR CMU has continued to demonstrate his support for anarchist and

radical environmental terrorist groups, and demonstrate his desire to remain in an

influential and leadership position among these groups.”

See Docket #99-4 (2/1/11 Smith Memorandum). As explained below, this is all core political

speech that is protected by the First Amendment.

Defendants claim that Mr. McGowan’s speech is unprotected “given the danger posed to

both the public and prison security.” MTD at 29. However, Defendants ignore the fact that this

speech was sent to an audience outside the prison, and thus their glib assertions of prison security

are unavailing. See Thornburgh, 490 U.S. at 411-12 (“outgoing correspondence that magnifies

grievances or contains inflammatory racial views cannot reasonably be expected to present a

danger to the community inside the prison. In addition, the implications for security are much

more predictable”); see also Jordan v. Pugh, 504 F. Supp. 2d 1109, 1125 (D. Co. 2007) (“as with

all other publications, particular content may give rise to a security risk only once the publication

enters the prison. But as to entry of all publications into the prison, the BOP has adequate

authority to screen and exclude dangerous content”). Given that there is no evidence that Mr.

McGowan’s writings entered the prison, Defendants’ assertion of a “danger” to “prison security”

is unfounded.

Because it was directed to an audience outside the prison, Mr. McGowan’s speech

implicates not only his own right to freedom of expression, but that of the public as well and is

thus entitled to broader First Amendment protection. See Martinez, 416 U.S. at 409 (restrictions


23

on prisoner correspondence “works a consequent restriction on the First and Fourteenth

Amendments rights of those who are not prisoners. Accordingly, we reject any attempt to justify

censorship of inmate correspondence merely by reference to certain assumptions about the legal

status of prisoners”). First, prison officials must show that restrictions on a prisoner’s outgoing

speech “further an important or substantial governmental interest unrelated to the suppression of

expression.” Id. at 413; see also Thornburgh, 490 U.S. at 408-12 (affirming the Procunier v.

Martinez analysis of outgoing correspondence). “Second, the limitation of First Amendment

freedoms must be no greater than is necessary or essential to the protection of the particular

governmental interest involved.” Martinez, 416 U.S. at 413-14.

Defendants posit an entirely theoretical and unsubstantiated risk of danger posed by Mr.

McGowan’s speech to the public. None of the speech cited by Defendants in their briefing, or

described above, describes or discusses criminal activity. Instead, his speech – including

describing government cooperators as “snitches,” discouraging others from cooperating with the

government, and discussing environmental movements – is simply an expression of Mr.

McGowan’s political views, beliefs, and affiliations. Such core political speech is unequivocally

protected by the First Amendment. See NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460

(1958) (“It is beyond debate that freedom to engage in association for the advancement of beliefs

and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the

Fourteenth Amendment, which embraces freedom of speech”); NAACP v. Button, 371 U.S. 415,

430 (1963) (freedom to associate with others for the common advancement of political beliefs

and ideas is protected by the First Amendment). In the absence of criminal activity, Defendants

fail to meet their heavy burden of demonstrating that Mr. McGowan’s CMU designation and

redesignation furthered an important or substantial interest, and that they were no greater than is


24

necessary or essential to the protection that interest. Martinez, 416 U.S. at 413; see also

Harrison v. Institutional Gang of Investigations, No. C 07-3824, 2010 U.S. Dist. LEXIS 14944

at *19 (N.D. Cal. Feb. 22, 2010) (denying defendants’ motion for summary judgment regarding

outgoing mail where prison officials had not shown that correspondence “presented a danger to

prison security or actually encouraged violence”).

Moreover, these bedrock First Amendment rights do not dissipate simply because

Defendants do not approve of the political organization in question, or because the speaker

discusses organizations that may advocate criminal conduct. See Martinez, 416 U.S. at 413 (the

purpose of restrictions of outgoing correspondence cannot be “to eliminate unflattering or

unwelcome opinions”); see also Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2722,

2726, 2730 (2010) (“independently advocating for a cause is different from providing a service

to a group that is advocating for that cause”); Keyishian v. Bd. of Regents, 385 U.S. 589, 609-10

(1967) (striking down New York laws that “proscribe mere knowing membership without any

showing of specific intent to further the unlawful aims of the Communist Party of the United

States or of the State of New York”); De Jonge v. Oregon, 299 U.S. 353, 358, 366 (1937) (even

where the Communist Party advocated criminal syndicalism, individual who attended a

Communist Party meeting was “entitled to discuss the public issues of the day and thus in a

lawful manner, without incitement to violence or crime, to seek redress of alleged grievances.

That was of the essence of his guaranteed personal liberty”). Defendants offer a conclusory

claim that Mr. McGowan’s speech involved “references in support of ‘direct action,’” MTD at

26, but offer no explanation of or facts to support that claim. In any event, well-established First

Amendment jurisprudence makes clear that expressing support for direct action does not, in and

of itself, fall outside of the First Amendment’s protections and that restricting such protected


25

speech does not “further an important or substantial governmental interest unrelated to the

suppression of expression.” Martinez, 416 U.S. at 413.

There is no evidence that Mr. McGowan’s political writing “has strained prison

resources, contributed to unrest among the inmate population, or enhanced [his] status as a

prisoner, resulting in danger to himself or others . . . . The record does not show that

[Defendants’] actions were motivated by concerns about escape plans, plans about ongoing

criminal activity, or threats. To the contrary, it appears that [Mr. McGowan’s] activity has not

heightened tensions at the prison, and that his writings do not advocate violence, have any

impact on the prison population, threaten corrections officers, or burden prison security

resources.” Abu-Jamal, 154 F.3d at 134, 135 (applying the more permissive Turner standard).

Thus, Mr. McGowan has plausibly alleged that “the limitation of [his] First Amendment

freedoms [is] greater than is necessary or essential to the protection of the particular

governmental interest involved.” Martinez, 416 U.S. at 413-14.

In the absence of any evidence of a security risk posed by Mr. McGowan’s writings, Mr.

Smith’s description of his speech – focusing on his attempts to “unite” and “educate” members

of movements, publishing “his points of view on the internet,” and demonstrating his “support”

for anarchist and radical groups – suggests that Mr. McGowan’s CMU designation and

redesignation were based not on “legitimate and neutral” reasons, but instead were motivated by

the “suppression of expression.” Id. at 413; see also Abu-Jamal, 154 F.3d at 134 (applying the

more lenient Turner standard and concluding “that it is likely that Jamal can demonstrate that the

Department[] . . . was motivated, at least in part, by the content of his articles . . . and hence, the

actions were not content neutral as required”) (citations omitted). Mr. McGowan has received no


26

disciplinary infractions as a result of his speech. Like with Mr. Jayyousi, this demonstrates that

he has engaged in no wrongdoing. See Goff, 991 F.2d at 1437; Watkins, 599 F.3d at 791.

Mr. McGowan’s correspondence focused on his political beliefs and ideas, and all the

law cited by and relied upon by Plaintiffs was clearly established at the time of his designation

and redesignation to the CMU. See supra; see also Kimberlin, 199 F.3d at 502; Treff v. Galetka,

74 F.3d 191, 194 (10th Cir. 1996) (“correspondence between a prisoner and an outsider

implicates the guarantee of freedom of speech”); Searcy v. United States, 668 F. Supp. 2d 113

(D.D.C. 2009) (collecting cases and recognizing a right to communicate with family and friends

under the First Amendment). Moreover, Mr. McGowan has plausibly alleged that his writings

did not impinge on any important governmental interests. See, e.g., Gandy v. Ortiz, 122 Fed.

Appx. 421, 423 (10th Cir. 2005) (“Prison officials . . . may not punish inmates for statements

made in letters to outsiders that do not impinge on . . . important governmental interests”). His

speech was therefore unambiguously protected by the First Amendment at the time Mr. Smith

authored his memos, and he has plausibly alleged that his designation and redesignation to the

CMU did not further an important or substantial governmental interest unrelated to the

suppression of expression, and was a greater measure than necessary or essential to the

protection of the alleged governmental interests.

Defendants also claim that Mr. McGowan was redesignated to the CMU because of

“efforts to ‘circumvent inmate communication monitoring by having documents mailed to him

under the guise of attorney-client privileged communication.’” MTD at 27. Plaintiffs have

already addressed this issue, see Docket #35, and the Court has already found that Mr. McGowan

has plausibly stated a claim for First Amendment retaliation in light of these allegations. See

Memorandum Opinion, Docket #37 at 32 (“The plaintiffs allege that this redesignation was in


27

direct response to a telephone conversation that he had with his wife, after being placed back in

the general population, in which he requested that she ask his attorneys to send him certain legal

documents. In light of these allegations, the court concludes that McGowan has also stated a

plausible claim of retaliation”). Defendants provide no reason to depart from that analysis. Cf.

In re City of Phila. Litig., 158 F.3d 711, 720 (3d Cir. 1998) (where additional evidence only

supports the prior panel’s conclusion, law-of-the-case applies).

Nonetheless, given that Defendants raise this point again here, a brief response is

appropriate. In February 2011, Mr. McGowan asked his wife to ask their attorneys, undersigned

counsel, whether they could send him two CTU documents obtained and published online by a

website called publicintelligence.net. See FAC ¶ 146; see also Docket #35 at 2-3. She agreed to

make this request on his behalf. See Docket #35 at 2-3.

This cannot provide a legitimate basis to redesignate Mr. McGowan to the CMU.

Requesting information from a lawyer that is relevant to one’s case is not circumvention of mail

monitoring. Indeed, Plaintiffs have requested a full set of these documents in discovery, have

received them from opposing counsel without a relevance objection, and expect to use them to

prove their claims in this case. Moreover, prisoners are of course entitled to seek advice and

information from counsel. The right to access counsel, and thereby the courts, is fundamental,

and protective of all other rights. See, e.g., Akers v. Watts, 740 F. Supp. 2d 83, 96 (D.D.C. 2010)

(“An inmate has a First Amendment right of access to the courts that is adequate, effective, and

meaningful.”) (citing Bounds v. Smith, 430 U.S. 817, 821-22 (1977)); see also Bieregu v. Reno,

59 F.3d 1445, 1456 (3d Cir. 1995) (“Of all communications, attorney mail is the most

sacrosanct”). Mr. McGowan was not disciplined as a result of his request, nor were his attorneys

notified that he could not be sent these documents. Defendants’ retaliation against Mr.


28

McGowan for an appropriate and relevant request for information from counsel

unconstitutionally chills and interferes with the attorney-client relationship. See Docket #35 at 3.

Like Judge Urbina, this Court should deny Defendants’ motion to dismiss on these grounds.

The cases cited by Defendants, without explication, do not suggest otherwise. Altizer v.

Deeds holds that a prison may inspect a prisoner’s outgoing mail consistent with the First

Amendment. 191 F.3d 540, 548 (4th Cir. 1999). That is uncontroversial and is unchallenged

here. In fact, Altizer’s holding bolsters Mr. McGowan’s argument that there are less restrictive

ways for Defendants to achieve their interest in ensuring that Mr. McGowan’s correspondence

with individuals and publications outside of prison does not involve criminal activity: i.e. they

can (and do) simply read his non-legal mail. Gandy v. Ortiz found that a prisoner had stated a

claim for First Amendment retaliation where he sent a letter criticizing a prison program to an

outside party. 122 Fed. Appx. at 423. Where Mr. McGowan has also expressed his views –

which do not even pertain to prison policies or conditions – to non-prisoners, Gandy is of no aid

to Defendants. And Akers v. Watts held that a prison may restrict a prisoner’s correspondence to

immediate family only, consistent with the First Amendment. 740 F. Supp. 2d 83, 96 (D.D.C.

2010). Again, Mr. McGowan does not challenge Defendants’ ability to restrict his

correspondence, but alleges that he was designated and redesignated to the CMU (clearly a more

restrictive alternative) in retaliation for speech that is protected by the First Amendment. Akers

is simply irrelevant.

C. Designation to the CMU Is Sufficient to Deter a Person of Ordinary Firmness

From Speaking Again.

The second prong of a retaliation claim requires a plaintiff to allege that “the defendant

took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's

position from speaking again.” Banks, 515 F. Supp. 2d at 111. Defendants do not contest that


29

CMU designation meets this standard. This stands to reason. The CMUs impose severe

communications restrictions on prisoners – which, in some instances, are stricter than those

imposed at the Administrative Maximum (ADX) facility USP Florence, the only

“supermaximum” security facility in the federal system. FAC ¶ 58. These restrictions have

negatively impacted Plaintiffs’ ability to maintain relationships with their family and loved ones.

Id. ¶¶ 151-54, 200-03. CMU prisoners are segregated from all other prisoners; the units are

known and referred to throughout both prisons (and the BOP as a whole) as “terrorist units”; and

the stigma of “terrorist” follows plaintiffs and other CMU prisoners even after their release. Id. ¶

66. Plaintiffs have thus plausibly alleged that CMU designation is sufficiently harsh that its

deterrent effect satisfies the retaliation standard. See, e.g., Anderson-Bey v. District of Columbia,

466 F. Supp. 2d 51, 65-66 (D.D.C. 2006) (holding that “the denial of benefits that would

otherwise generally be available” to a prisoner is ‘likely to deter a person of ordinary firmness

from [the] exercise [of protected activity]”).

D. Plaintiffs Have Adequately Pled a Causal Link Between their Protected

Speech, and their CMU Designations.

As explained in Section A, above, Defendants cannot defeat Plaintiffs’ properly pled

retaliation claims by reference to a hypothetical penological purpose that could allegedly be

served by Defendants’ actions. However, it is true that causation is a required element of a

retaliation claim. Aref, 774 F. Supp. 2d at 169. A retaliation claim requires “but-for causation,

without which the adverse action would not have been taken.” Hartman v. Moore, 547 U.S. 250,

260 (2006). The plaintiff bears the initial burden of proving that his constitutionally-protected

conduct was a substantial or motivating factor in the defendant’s decision; the burden than shifts

to the defendant to prove by a preponderance of the evidence that it would have taken the same

action even in the absence of the protected activity. See id.; Rauser, 241 F.3d at 333. Of course,


30

Plaintiffs need not prove their claim on a motion to dismiss; rather for these purposes all

Plaintiffs must do is plausibly allege that protected speech motivated Defendants’ decision to

designate them to the CMU. See, e.g., Banks, 515 F. Supp. 2d at 112 (holding plaintiff’s

allegations that he was placed in solitary after he complained about his cellmate, and in

retaliation for his complaints, sufficient to show causal connection on motion to dismiss, despite

lack of factual detail). Plaintiffs’ detailed allegations are more than adequate to make this

showing.

With respect to Mr. McGowan, Judge Urbina’s analysis in 2011 is instructive. The Court

noted that Plaintiffs had alleged in their initial Complaint that Mr. McGowan had a clean

disciplinary record, had been active in social justice movements during his incarceration, and

was subsequently designated to a CMU; that information in his Notice of Transfer was patently

untrue; and that Mr. McGowan was redesignated to the CMU after requesting that his wife ask

his attorneys to send him legal documents. See Memorandum Opinion, Docket #37, at 32.

Based on these allegations, the Court denied Defendants’ motion to dismiss Mr. McGowan’s

retaliation claim. All of these allegations also appear in the First Amended Complaint. See FAC

¶¶ 133, 135, 136, 138, 147-49. Indeed, Mr. McGowan’s retaliation claim has only changed in

two ways since Judge Urbina’s 2011 decision: first, Mr. McGowan has added a damages claim

against Mr. Smith, and thus has advanced detailed allegations about Mr. Smith’s role in

designating, retaining, and redesignating him to the CMU; and second, he has included

additional factual detail in support of his claim, including the excerpts of Mr. Smith’s rationale

for his CMU placement. Id. ¶¶ 134, 141-48. None of these new allegations provide a basis to

depart from Judge Urbina’s sound analysis. Cf. In re City of Phila. Litig., 158 F.3d at 720.


31

Far beyond merely supporting an inference that Mr. McGowan’s speech led to his CMU

designation, retention, and redesignation, the memos Mr. McGowan cites provide direct proof of

a causal connection between Mr. McGowan’s political speech and his CMU placement.

Plaintiffs have described at length the political speech that Mr. Smith cited in his memoranda to

justify Mr. McGowan’s CMU designation. See Section I(B)(ii), supra (describing how Mr.

Smith referred to Mr. McGowan’s writings about unity and efficacy in the environmental

movement; guidance, leadership, and direction for activities, publications and movement

practices in order to further the goal of radical environmental groups, and his “continued support

for anarchist and radical environmental terrorist groups”). In each of the instances, Mr. Smith

based his decision to recommend Mr. McGowan for CMU designation on political writings and

speech.

Defense counsel’s unsworn insistence that Mr. Smith was actually motivated by Mr.

McGowan’s conviction and past involvement with ELF, see MTD at 26, cannot defeat these

allegations. While Mr. Smith may testify, at some point in the future, that Mr. McGowan would

have been designated to the CMU regardless of his speech, due to the nature of his conviction,

now is not that time. And even if Mr. Smith could credibly explain the long-identified errors in

Mr. McGowan’s notice of transfer that led Judge Urbina to find retaliation plausible, such

testimony would only raise a material factual dispute, unlikely to be susceptible to summary

judgment, much less dismissal prior to discovery. See, e.g., Allen v. Avance, No. 11-6102, 2012

U.S. App. LEXIS 149045, *14 (10th Cir. July 10, 2012) (genuine issue of material fact as to

whether prisoner was ordered into an observation cell for complaining about visitation policies

or because he acted disruptively). As for Mr. McGowan’s CMU retention and redesignation, it is

hard to see how Mr. Smith could even attempt to refer back to Mr. McGowan’s conviction, as


32

the relevant memos clearly identify Mr. McGowan’s speech as the deciding factor, with his

conviction merely included as background. See MTD Ex. 4 & 5.

Mr. Jayyousi’s claim is equally well-pled. He does not challenge his initial CMU

designation, which was the subject of Judge Urbina’s 2011 decision. See Aref, 774 F. Supp. 2d

at 170. Rather, he challenges Mr. Smith’s recommendation, in 2011, to retain him at the CMU

despite the warden’s recommendation that he be cleared for transfer to a general population unit.

FAC ¶ 195-98. Mr. Smith’s recommendation provides a direct causal link between Mr.

Jayyousi’s speech and his CMU retention. Mr. Jayyousi’s conviction is referenced as the reason

for his initial designation – but it was his statements during Muslim rotational prayer that

motivated Mr. Smith’s recommendation to keep him in the CMU. See MTD at Ex. 2. Defense

counsel cannot contradict the well-pled facts in the First Amended Complaint through unsworn

argument in support of a motion to dismiss.

Plaintiffs have therefore adequately pled each prong of a First Amendment retaliation

claim. Moreover, their allegations are supported by longstanding and well-established case law.

Defendants’ motion to dismiss these claims should thus be denied.

II. THE PRISON LITIGATION REFORM ACT DOES NOT BAR MR. JAYYOUSI

AND MR. MCGOWAN FROM RECOVERING COMPENSATORY AND

PUNITIVE DAMAGES.

Defendants also seek to dismiss Mr. Jayyousi and Mr. McGowan’s First Amendment

damages claims by mischaracterizing them as claims “for mental and emotional injury,” for

which they cannot recover compensatory or punitive damages. In so doing, Defendants ignore

critical allegations in the First Amended Complaint and seek to expand the Prison Litigation

Reform Act (“PLRA”) beyond its text and meaning. The argument fails for two reasons: First,

Mr. Jayyousi and Mr. McGowan do not bring suit merely for emotional and mental injury; they


33

have alleged other injuries that are neither emotional nor mental, for which recovery is not barred

by the PLRA. Second, even if Plaintiffs had not alleged these injuries, they could still obtain

nominal relief for the constitutional violations, which independently bars dismissal.

Contrary to Defendants’ suggestion, section 803(d) of the PLRA does no more than what

it says: it prevents prisoners who have not suffered physical harm from recovering damages for

“mental or emotional injury.”4 The provision does not bar claims for compensatory damages in

actions that allege other injuries. See Robinson v. Page, 170 F.3d 747, 748 (7th Cir. 1999)

(explaining that if a prisoner had property taken away, causing him property loss and

psychological but not physical injury, a court’s disallowing of recovery for that property loss

would be “gratuitous” and “contrary to the fundamental procedural norm”); Jones v. Bock, 549

U.S. 199, 221-23 (2007) (citing Robinson’s observation with approval and noting that requiring a

dismissal of an entire suit instead of simply limiting recovery for emotional and mental injuries

would “contravene our normal rules of statutory construction”).

To the extent that Plaintiffs have pled emotional and mental injury, see, e.g., FAC ¶¶ 156,

204, Defendants are correct that the PLRA bars compensatory damages for this harm. However,

the PLRA has no impact on Plaintiffs’ ability to collect compensatory damages for other injuries,

including lost educational opportunity, ruptured family relations, restrictions on liberty, and

chilled First Amendment speech and activity. See Id. ¶ 240. The First Amended Complaint

describes the lack of programming available to the CMU inmates to prepare them for their

eventual release, which has diminished Mr. Jayyousi’s and Mr. McGowan’s post-release

4 As Defendants note, the relevant provision is 42 U.S.C. § 1997e(e), titled “Limitation on

recovery.” It provides that: “No Federal civil action may be brought by a prisoner confined in a jail,

prison, or other correctional facility, for mental or emotional injury suffered while in custody without a

prior showing of physical injury.”


34

prospects, thereby causing them to sustain further monetary damages. See id. ¶¶ 66-68.5 Both

Plaintiffs have also alleged in detail the lasting harm that the retaliatory CMU placement and

retention have inflicted on their family relations – injury that for centuries has been recognized

as a category of harm separate from mental and emotional distress. See id. ¶¶ 151-55, 200-04,

240; ARTHUR G. SEDGWICK & JOSEPH H. BEALE, JR., 1 SEDGWICK’S TREATISE ON DAMAGES 50-

51 (8th ed. 1891). Also independent from emotional harm is the loss of liberty that Plaintiffs

have suffered in the CMU, with its unprecedented restrictions on communication and visitation

rights. See FAC ¶¶ 33-68; Kerman v. City of New York, 374 F.3d 93, 125-26 (2d Cir. 2004)

(“The damages recoverable for loss of liberty for the period spent in a wrongful confinement are

separable from damages recoverable for such injuries as physical harm, embarrassment, or

emotional suffering; even absent such other injuries, an award of several thousand dollars may

be appropriate simply for several hours’ loss of liberty.”).

Lastly, Defendants ignore the harm that Mr. Smith has inflicted on Mr. Jayyousi’s and

Mr. McGowan’s First Amendment rights. See FAC ¶¶ 237, 238. His retaliatory conduct has

resulted in concrete injuries to both Plaintiffs by inhibiting their expression, engagement, and

consumption of protected speech and activity. See id. ¶¶ 134, 143, 189-90, 191, 196-97. Mr.

McGowan, for instance, has been prohibited from receiving material about lawful environmental

and political prisoner advocacy, see id. ¶ 150, and Mr. Jayyousi has been punished for leading a

Muslim prayer, see id. ¶¶ 189-90, 196-97. The D.C. Circuit has held that these types of First

Amendment injuries stand apart from emotional distress and “merit ‘fair compensation.’”

5 At trial, Plaintiffs may establish other economic harm that was a direct result of their CMU

placement and retention, such as less desirable jobs available to them at the CMU and inability to

complete education programs started in the general inmate population. Because these damages were the

“proximate and foreseeable consequences of the defendant’s conduct,” they need not have been pled with

specificity. 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §

1310 (3d ed. 2012).


35

Hobson v. Wilson, 737 F.2d 1, 61-62 (D.C. Cir. 1984) (noting that First Amendment

compensable rights include inability to continue with demonstrations, restrictions of inmates’

access to books, and deterrence from attending meetings); see also Memphis Cmty. Sch. Dist. v.

Stachura, 477 U.S. 299, 307, 315-16 (1986) (Marshall, J., concurring) (explaining that when a

plaintiff is deprived of his First Amendment right, there is a classic loss of opportunity, and

“[t]here is no reason why such an injury should not be compensable in damages”); City of

Watseka v. Ill. Pub. Action Council, 796 F.2d 1547, 1559 (7th Cir. 1986), aff’d, 479 U.S. 1048

(1987) (affirming an award of damages where defendant prevented a lawful exercise of First

Amendment rights, noting that damages are recoverable even where “the monetary value of the

particular injury is difficult to ascertain”).

Defendants ignore all these damages pled by Plaintiffs, instead relying on Davis v.

District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998), to make their case. See MTD at 30-31.

But unlike Mr. Jayyousi and Mr. McGowan, the plaintiff in Davis alleged “emotional and mental

distress, but no other injury,” depriving him of recovery under the PLRA. 158 F.3d at 1345

(emphasis added). Nowhere in the opinion does the court suggest that failure to plead physical

harm bars recovery for the types of injuries suffered by the two Plaintiffs in this action.

Defendants’ reliance on Davis and its progeny is therefore misplaced. See Munn Bey v. Dep’t of

Corr., 839 F. Supp. 2d 1, 4, 6 (D.D.C. 2011) (dismissing claims that were based only on “stress

and emotional injuries”); Hunter v. Corr. Corp. of Am., 04-CV-2257, 2006 WL 463207, at *1

(D.D.C. Feb. 24, 2006) (dismissing lawsuit that sought damages solely for “mental anguish”).6

6 The absence of non-mental and non-emotional injuries in Davis (and their presence here) –

though sufficient by itself to undermine Defendants’ argument – is not the case’s only significant

distinction. The constitutional claim addressed in Davis was also not grounded in the First Amendment,

which some courts have recognized to give rise to actions that fall outside of the PLRA’s reach,

regardless of the alleged injuries. See, e.g., Rowe v. Shake, 196 F.3d 778, 781 (7th Cir. 1999) (observing

that interference with the receipt of mail was an actionable violation of First Amendment rights even


36

Similarly misguided is Defendants’ contention – tucked away in a footnote – that Mr.

Jayyousi and Mr. McGowan cannot recover punitive damages. See MTD at 32 n.14. Like

Defendants’ assertions about compensatory damages, this argument requires a selective reading

of the First Amended Complaint, which describes how Mr. Smith attempted to silence the two

Plaintiffs by placing and keeping them in the CMU. See FAC ¶¶ 146-50, 196-97, 237-38. These

allegations fairly suggest malice, though to sustain punitive damages even reckless disregard for

Plaintiffs’ constitutional rights would suffice. See, e.g., Huthnance v. District of Columbia, 793

F. Supp. 2d 183, 213 (D.D.C. 2011) (“Defendants cannot, and indeed make no attempt to,

explain how they could have arrested Huthnance based on the content of her speech and yet not

acted with reckless disregard for her constitutional rights”). Accordingly, Mr. Jayyousi’s and

Mr. McGowan’s rights to recover both compensatory and punitive damages provide further

reasons why their claims of retaliation should not be dismissed.

Even if the Court were to disagree with Plaintiffs’ position and hold that the PLRA

precludes Plaintiffs from recovering compensatory and punitive damages, dismissal of their

retaliation claims would still not be warranted because they can proceed with the claim to collect

nominal damages. See, e.g., Dowd v. Calabrese, 589 F. Supp. 1206, 1222-23 (D.D.C. 1984)

(rejecting motion for summary judgment, holding that regardless of whether plaintiff could

establish a compensable injury, “he would still be entitled to a judgment upon proof of

deprivation of his First Amendment rights, although the damages might be nominal only”).7

though no other injury was alleged). But see, e.g., Searles v. Van Bebber, 251 F.3d 869, 875-76 (10th Cir.

2001) (recognizing but disagreeing with authority that finds PLRA inapplicable to First Amendment

claims in actions where “the only injuries are mental or emotional”). 7 Plaintiffs have sought nominal damages through their broad prayer for relief. See, e.g., Yniguez v.

State, 975 F.2d 646, 647 n.1 (9th Cir. 1992) (per curiam) (“Although the plaintiff’s complaint does not

expressly request nominal damages, it did request ‘all other relief that the Court deems just and proper

under the circumstances.’ That is sufficient to permit the plaintiff to pursue nominal damages”).


37

III. PLAINTIFFS TAKE NO POSITION ON DEFENDANTS’ MOOTNESS

ARGUMENT.

Finally, Defendants argue that Mr. McGowan’s claims seeking equitable relief for his

transfer to the CMU are now moot, given that he is currently housed at a Residential Reentry

Center, or “halfway house.” MTD at 8. Plaintiffs do not concede that Mr. McGowan’s current

confinement in a halfway house moots his equitable claims. Indeed, Defendants’ assertion that

former Plaintiff Avon Twitty’s claims for equitable relief were dismissed following his transfer

to a halfway house, see MTD at 8, is inaccurate. Mr. Twitty’s claims were in fact dismissed after

he was released from BOP custody altogether. See Plaintiffs’ Notice Regarding Change in

Confinement Status of Avon Twitty, Docket #33 (dated February 8, 2011); Memorandum

Opinion, Docket #37 at 16 (dated March 30, 2011) (noting that Mr. Twitty “is no longer in BOP

custody” and finding that his claims are moot). However, Mr. McGowan will be released from

BOP custody on June 5, 2013, and his claims will then be moot under this Court’s prior ruling.

See Memorandum Opinion, Docket #37 at 16. Given that this will occur before resolution of his

equitable claims, see Scheduling Order (Docket #95), Plaintiffs do not oppose dismissal of Mr.

McGowan’s equitable claims.

* * *

Pursuant to Sections 2C and 2F(4) of the Court’s Standing Order, undersigned counsel

certifies that he met and conferred by telephone with counsel of record for Defendants in an

attempt to determine whether this motion could be avoided by filing an amended pleading. The

parties’ counsel concluded that it could not be. This Court’s February 12, 2013 Minute Order

authorized Plaintiffs to file an Opposition to Defendants’ motion of not more than 40 pages. See

Minute Order of Feb. 12, 2013.


38

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss Mr. Jayyousi’s claims should

be denied in its entirety, as should their motion to dismiss Mr. McGowan’s damages claim.

Dated: March 19, 2013

By: /s/ Alexis Agathocleous

ALEXIS AGATHOCLEOUS, pro hac vice

RACHEL MEEROPOL, pro hac vice

SHAYANA D. KADIDAL

(D.C. Bar No. 454248)

CENTER FOR CONSTITUTIONAL RIGHTS

666 Broadway, 7th Floor

New York, NY 10012

Tel: (212) 614-6478

Fax: (212) 614-6499

[email protected]

GREGORY SILBERT, pro hac vice

JOHN GERBA

LARA VEBLEN

EILEEN CITRON (D.C. Bar No. 995117)

ANDREY SPEKTOR, pro hac vice

WEIL, GOTSHAL & MANGES, LLP

767 Fifth Avenue

New York, NY 10153

Tel: (212) 310-1000

Fax: (212) 310-8007

[email protected]

KENNETH A. KREUSCHER

Portland Law Collective, LLP

1130 SW Morrison Street, Suite 407

Portland, OR 97205

Tel: 503-228-1889

Fax: 503-223-4518

[email protected]

Attorneys for Plaintiffs


39

CERTIFICATE OF SERVICE

I, Alexis Agathocleous, counsel of record for the Plaintiffs, hereby certify that on March

19, 2013, I placed a copy of the foregoing in the mail in a prepaid Federal Express envelope to

the following person and address: “Royal Jones, Fed. Reg. No. 04935-046, Community

Education Center – Casper, 10007 Landmark Lane, mills, WY 82644.”


EXHIBIT A

Case 1:10-cv-00539-BJR-DAR Document 102-1 Filed 03/19/13 Page 1 of 4

.


.


.
